Clemens' retorts could add up to perjury rap

Tuesday

Feb 26, 2008 at 2:00 AM

New York Times

A congressional committee has taken the first steps toward asking the Department of Justice to launch a criminal investigation into whether Roger Clemens committed perjury during testimony about his use of performance-enhancing drugs, according to three lawyers familiar with the matter.

A draft letter referring Clemens, but not his accuser, Brian McNamee, had been drawn up by staff members for the House Committee on Oversight and Government Reform by the end of last week, according to two of the lawyers. However, all three lawyers, who spoke on condition of anonymity because they were not authorized to comment publicly on the matter, said it was possible that McNamee would also be included in the referral by the time it was sent to the Justice Department.

If the committee does decide to refer Clemens alone, it would indicate that the Democratic majority, led by Chairman Henry A. Waxman, D-Calif., had prevailed over any Republican reservations about the truthfulness of McNamee's statements in the Mitchell report, a subsequent deposition and his testimony at a nationally televised committee hearing Feb. 13.

That hearing split along partisan lines, with most Republicans attacking McNamee and most Democrats challenging Clemens. The next day, Waxman said he regretted that the hearing had been held — he said he thought the depositions would have sufficed but that Clemens' lawyers wanted a public airing of the issues — and that he also believed that Clemens did not tell the truth.

In an interview yesterday, Waxman said no decision on a referral had yet been made, but that one would be forthcoming by the end of the week. He said he had not yet spoken to the committee's ranking Republican, Tom Davis of Virginia, about the matter.

Because of the partisan nature of the Feb. 13 hearing, there had been speculation that the committee would refer the entire matter to the Justice Department rather than single out Clemens. In his deposition to congressional investigators and at the hearing, Clemens denied that he had ever taken steroids or human growth hormone, even though McNamee has testified that he injected Clemens with one drug or the other on 16 occasions between 1998 and 2001.

In a related case last month, Waxman and Davis jointly asked the Justice Department to investigate shortstop Miguel Tejada for suspected false statements in 2005, when Tejada spoke privately with committee staff members about his performance-enhancing drugs.

Any referral from the committee is primarily a symbolic gesture. The Justice Department can decide on its own to investigate a congressional perjury case, and indeed, several federal agents were present during the hearing on Feb. 13.

McNamee is cooperating with federal authorities and, under a proffer agreement, he will not be charged with any crimes if he tells the truth.